Denaturalisation and conceptions of citizenship in the 'war on terror'

Citizenship Studies

ISSN: 1362-1025 (Print) 1469-3593 (Online) Journal homepage: http://www.tandfonline.com/loi/ccst20

Denaturalisation and conceptions of citizenship in the ‘war on terror’ Patrick Sykes To cite this article: Patrick Sykes (2016): Denaturalisation and conceptions of citizenship in the ‘war on terror’, Citizenship Studies, DOI: 10.1080/13621025.2016.1191433 To link to this article: http://dx.doi.org/10.1080/13621025.2016.1191433

Published online: 02 Jun 2016.

Submit your article to this journal

Article views: 43

View related articles

View Crossmark data

Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=ccst20 Download by: [Bogazici University]

Date: 29 June 2016, At: 02:01

Citizenship Studies, 2016 http://dx.doi.org/10.1080/13621025.2016.1191433

Denaturalisation and conceptions of citizenship in the ‘war on terror’ Patrick Sykes Department of Political Science and International Relations, Boğaziçi University, Istanbul, Turkey

Downloaded by [Bogazici University] at 02:01 29 June 2016

ABSTRACT

The threat of American and British nationals returning home after fighting with ISIS sparked calls in 2014 for legislation to allow the revocation of terror suspects’ citizenship. Using content analysis, this paper compares how citizenship was renegotiated during the debates that followed in both countries. For proponents of the new powers, acts considered prejudicial to national security did not simply constitute a ‘bad’ or dissenting citizen, but were incompatible with the status of citizenship itself. I find that republican discourses of citizenship conceived as loyalty to the state were used not as an alternative to liberal discourses that espouse individual rights and a more limited political arena, but precisely as means of discursively limiting of that arena, by selectively excluding particular undesirable or less desirable groups – terror suspects, naturalised citizens – from political life as we know it.

ARTICLE HISTORY

Received 24 September 2015 Accepted 2 May 2016 KEYWORDS

Denaturalisation; citizenship revocation; ‘war on terror’; foreign fighters; ISIS; stateless

Introduction In recent years, several Western governments have sought the power to deprive so-called foreign fighters of their citizenship. For a variety of reasons, which I discuss below, they consider the two categories irreconcilable. The ‘foreign fighter’ is thus presented as an inverse or negative image of the normatively desirable or acceptable citizen. The label of the ‘foreign fighter’ therefore invites study not only in itself or in order to understand its direct effects upon individuals, communities and policies, but because, through and in the course of its deployment as this inverse category, it reconfigures the ‘centre’ of citizenship, the (perceived) norms from which deviations are measured. This study analyses that process of reconfiguration in the cases of the UK and US, taking the debates over attempts to introduce denaturalisation powers for ‘foreign fighters’ as a lens through which to understand how citizenship is conceptualised by these two countries embroiled in their long ‘war on terror’. Although conceptions of citizenship as loyalty to a state are usually contrasted with conceptions of citizenship as a body of individual rights, I find that, in the ‘war on terror’, the former is used to discursively delimit the bounds of the latter. The result is that citizenship is re-constructed as a privileged status that states are empowered to withdraw

CONTACT Patrick Sykes

[email protected]

© 2016 Informa UK Limited, trading as Taylor & Francis Group


2

P. Sykes

from ‘undesirable’ groups – terror suspects, naturalised citizens – in order to justify their exclusion from political life. One must note from the outset that the figure of the ‘foreign fighter’ is by no means a distinct one. Various definitions have been proposed (Hegghammer 2010, 57–58; Malet 2013, 9), though none established in political science. As Kraehenmann notes, the phenomenon is neither uniquely Islamic nor even religious (2014, 5), and for Mustapha (2013), the concept conjures a spectrum of meanings from the ‘terrorist’ to the ‘cosmopolitan citizen’.1 Yet today it is a construct that is in practice used to refer to a group far smaller than its constituent terms suggest – namely those travelling abroad to fight with Islamic militant insurgencies. An individual or a non-state armed group fighting for a foreign government (rather than an insurgency), for instance, would qualify under the terminology but not the usage (Kraehenmann 2014, 6). Indeed the terminology is so loose that one can see how the initial invocation of the label to describe someone who leaves home to fight abroad can easily slide into the description of a fighter who becomes a de facto foreigner vis-à-vis the country they once called home – the state to which one is considered ‘foreign’ is undefined. In 2014, politicians in both the UK and the US proposed new legislation that sought to empower the government to strip citizenship from terror suspects, explicitly in relation to the perceived threat of nationals who had joined jihadist groups abroad (particularly in Syria and Iraq) returning to their native countries. In the UK, it was passed as part of the Immigration Act, which enabled the government to revoke citizenship in some cases even if it results in statelessness; in the US, it was proposed first as the Terrorist Expatriation Act and later as the Expatriate Terrorists Act, but neither passed, and the government remains unable to revoke citizenship in lieu of proof of its affirmative renunciation by the citizen in question. This paper compares the conceptions of citizenship that were invoked in the two cases, and analyses the consequences of these conceptions for policy in the ‘war on terror’. Prior to 9/11, revocation powers had not been used in the UK since 1973 (Ross 2014). But since 2002, at least 27 people have been stripped of their nationality on the grounds that they were not conducive to the public good (Galey and Ross 2014).2 The Bureau of Investigative Journalism’s long-running ‘Citizenship Revoked’ investigation observed that ‘The British [2010–15 coalition] government has dramatically escalated its use of secretive citizenship-stripping powers’ (Ross and Galey 2013). Though the use of this power has grown, Herzog (2010) finds that it remains poorly understood among the publics of Western democracies, which more readily attribute such measures to far-away totalitarian regimes. The legitimacy of denaturalisation is indeed challenged in international law (League of Nations 1930; UN 1948, 1961), which enshrines nationality as a human right and explicitly prohibits its arbitrary deprivation. The denaturalisation debate did not occur in a vacuum. In the UK in particular, this latest weapon in the ‘war on terror’ is emblematic of the rise of the ‘homegrown terrorism’ discourse that frames particular citizens as simultaneously ‘at risk’ (of radicalisation) and ‘risky’ (from the perspective of the state) (Heath-Kelly 2013, 411). In its violent othering of those deemed undesirable for their views, it also represents the continuation of the UK’s move away from a multicultural policy towards one that expects or demands assimilation (Brighton 2007; Kundnani 2002) into a community normatively grounded in ‘shared values’ (Spalek and McDonald 2010), with all the exclusionary consequences that has for those who do not conform. This paper will provide further evidence of those two trends as manifested in this particular addition to states’ legal armoury.


Citizenship Studies

3

The literature engaging with denaturalisation and statelessness also encounters its fundamentally problematic nature. Following Arendt, Blitz and Lynch (2011, 4) argue that ‘the very notion of statelessness exposes the essential weaknesses of the global political system, which relies on the state to act as the principal guarantor of human rights’.3 Lavi holds up the mere possibility of denaturalisation to refute Aristotle’s aphorism that human beings are political animals, since it shows that political ‘nature’ is only accessible to those endowed with the relevant civic status (2010, 405–6). The more general condition of statelessness and the struggle to attain citizenship has received considerably more attention than its revocation, as exemplified in Blitz and Lynch’s (2011) expansive volume of global case studies.4 Waas (2008) and Walker (1981) offer thorough elucidations of the international legal architecture and the specific rights that can be invoked by those lacking a nationality. A dedicated issue of Forced Migration Review (Couldrey and Herson 2009) provides further background on statelessness through cases such as that of the Rohingya. Yet Kerber (2005) and Waas (2009) have shown that the problem is far from being limited to situations of overt political persecution in the underdeveloped world. Even amid the ‘crisis’ of the nation state proclaimed by Benhabib (2005), or its ‘inadequacy’ according to Cooper and Yoder (1999), the state in which citizenship is anchored remains a meaningful category alongside transnational forces (Vertovec 2001). One example of this is the exponential rise in the number of countries allowing dual citizenship and in the number of individuals taking it up, as traced by Sejersen (2008). Rather than signalling the irrelevance of citizenship, then, the perceived ‘decline’ of the nation state’s coherence suggests that citizenship is less and less a singular status befitting a zero-sum understanding of membership of or allegiance to a single political community. Changing grounds for revocation: from loyalty to security Appetites for denaturalisation are much increased in times of war (Herzog 2010, 7, Hooker 2005). In his history of the power’s application in America, Aleinikoff (1986) notes that the loss of citizenship first emerged during the American Civil War as a question of expatriation (voluntary renunciation of citizenship by the citizen) rather than forcible withdrawal by the government. Later it was mostly used as a means of punishing deserters or those avoiding conscription during the world wars. In the Cold War period, it was wielded against suspected members of the Communist Party USA (CPUSA), whose organisation was perceived as an internal threat to national security.5 Kerber’s (2005) ‘History of Statelessness in America’ traces cases from the American Civil War up to PATRIOT II in our own time. Whilst war has most often been the setting for denaturalisation, ‘disloyalty’ has historically been its most frequently evoked grounds, as discussed by Preuss (1942). The American precedent sharply deviated from this in the case of Trop v Dulles, in which Justice Warren, appearing to directly quote Arendt, ruled that: use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, nor primitive torture. There is instead the total destruction of the individual’s status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. […] In short, the expatriate has lost the right to have rights. (Trop v. Dulles 1958, 783).

4

P. Sykes


This ruling epitomises what Abowitz and Harnish (2006, 653) would later describe as the ‘liberal discourse’ on denaturalisation, in their survey of ‘the discourses that currently construct the meanings of citizenship in contemporary Western culture’. It emphasizes rights and protection for the individual, as opposed to the ‘civic republican discourse’, which stresses instead an implicit social contract that demands loyalty to the state. ‘Whereas civic republican discourse values the common good of political communities, political liberalism envisions a more limited political arena, with greater focus on procedures that would ensure fair, inclusive deliberation about governance and policy’ (662). 9/11 marked a turning point. Lavi (2010, 2011) recounts how some countries concluded that the notion of breach of allegiance was too vague a ground for denaturalisation in the context of the ‘war on terror’. In the UK case, the government concluded that acts of perceived disloyalty have become dated and perhaps fail to reflect the full width of activity that might threaten our democratic institutions and our way of life. September 11th provides a horrific illustration of the sort of threat that we have in mind. (Lavi 2010, 407)

Hence the United Kingdom, the Netherlands, France, Denmark and Israel, all ‘amended their laws to make it easier for the state to revoke the citizenship of both naturalized and born citizens’ (Lavi 2011, 784). The US considered but ultimately rejected equivalent legislation, in the controversial USA PATRIOT II act and more recently in the Terrorist Expatriation Act and Expatriate Terrorists Act.6 The question of what constitutes just denaturalisation and what the consequences are for citizenship is therefore very much contested. Since then, denaturalisation has increasingly been discussed as a security measure. Whilst Aleinikoff (1986) proposed the preservation of public order as one justification almost 30 years ago, the decline of the citizenship-as-loyalty ‘civic republican discourse’ has left space for this securitisation discourse to flourish. For example, Lavi (2010, 410) conceives of contemporary citizenship as a right to reside, and by extension a mechanism for controlling migration. For some, such as Gross (2003), this security impulse is unproblematic. Once a citizen has been denaturalised, he writes, ‘Deportation simply reflects the government’s refusal to continue hosting people whom it does not want’ (2003, 118). For others, the increasingly biometric management of citizenship, in which authenticated access takes precedence over identity, is ambiguously politicising and depoliticising (Muller 2004), with all the necessary exclusion that such a division entails. The denaturalised citizen is in this sense designed as a deterrent, ‘throwing fear into the rest of us’ (Kerber 2005, 745). The existing literature is considerably weighted towards the US case. In the UK, Lord Goldsmith’s (2008) report on citizenship for the British Government echoes the consensus that the notion of a duty of allegiance is outdated in a transnational world in which loyalties are increasingly blurred. Interestingly, he writes that terrorism might not necessarily constitute a breach of that allegiance, though he does not give further consideration to this. Groot De and Vink (2010) set the loss of citizenship in Europe in the legislative context, but do not discuss denaturalisation as a penal measure for behaviour that is deemed prejudicial to security. Acknowledging that this once-clear link between individual and society has been weakened raises the question of how actors at the state level try to reconstitute it in the context of national security, both discursively and through legislation. A comparison of the UK and US cases, in which national security provided the impetus for a reconsideration of the

Citizenship Studies

5

law on citizenship’s revocation, and in turn a debate on what citizenship means, can bring us some way towards an answer.

Methods


Research methods and design My research was conducted using a combination of the three forms of content analysis outlined by Hsieh and Shannon (2005, 1277), namely conventional (in which ‘coding categories are derived directly from the text data’), directed (in which ‘analysis starts with a theory or relevant research findings as guidance for initial codes’) and summative content analysis (which ‘involves counting and comparisons, usually of keywords or content, followed by the interpretation of the underlying context’). I provided above a directed analysis of definitions of citizenship that emerged in relation to denaturalisation; conventional analysis allowed me to refine and code these conceptions through close reading of my textual data for each case; and I used summative analysis in comparing across the UK and US cases. My research is based on a most similar systems design (MSSD), as described by Landman (2003, 29–34). My two cases, the UK and US, are on the same side in the ‘war on terror’, the same conflict that has caused decades-dormant debates over denaturalisation to resurface. Yet their policies on denaturalisation differ. Both cases saw denaturalisation debated at the highest political level in the same year (2014), with new powers proposed and successfully passed in the UK but blocked in the US. In each case, I collected data that cover the periods over which the new legislation was debated. In the US, this spans from May 2014; when then Senator Joe Lieberman announced his Terrorist Expatriation Act, to September 2014, when Senator Ted Cruz’s Expatriate Terrorist Act (a modified form of Lieberman’s earlier act) was blocked in the Senate. In the UK, this runs from January 2014, when the Home Office published its fact sheet on the proposed amendment to the Immigration Act that would grant the Home Secretary the power to revoke citizenship even if it made someone stateless, to May 2014, when the Immigration Act was passed. Since I am particularly interested in contested definitions of citizenship, my data-set draws heavily on transcripts of debates in deliberative forums such as the House of Commons in the UK and Senate in the US. For both legislatures, transcripts are publically available online – Hansard in the UK and the Congressional Record in the US. But I also include published legal opinions, reports by rights organisations, speeches by individual politicians, press statements, newspaper articles and letters between politicians. These were selected on the basis of their relative capacity to influence the debate, either due to the prominence of the actor or their centrality to this particular debate. For example, in the US case I include all of Ted Cruz’s public statements on the issue, because he was the person advocating legislation; in the UK, I include Guy Goodwin-Gill’s paper because its influence on legislators was made clear by the frequency with which it was invoked in the Commons and Lords debates. All of these materials were produced either within the deliberative institutions (for example, the report of the Joint Committee on Human Rights (JCHR), commissioned by the Parliament) or from outside for lobbying purposes (for example, the letter by members of the Constitution Project to senators). Materials of both origins are often referenced in the more obviously deliberative environments, and I therefore take them to be part of a broader texture of deliberation in which meanings of citizenship were negotiated.

6

P. Sykes

Analysis The conceptions of citizenship that emerged during the course of both the UK and US debates fall under two categories that correspond to the nested but overlapping perspectives of the individual citizen, and the relationship between the citizen and the state. I call these, respectively, (1) citizenship as conduct and (2) citizenship as connection. In this section, I comparatively analyse how each one is articulated within the cases.


Citizenship as conduct The phrase that epitomises the UK Government’s position is ‘Citizenship is a privilege, not a right’. It appeared in the Home Office’s initial briefing fact sheet about the proposed change to the law (Home Office 2013), in the Home Secretary’s speech to the House of Commons during the first Commons debate on 30 January 2014, and in official responses to press queries about the law, and became the potted justification for the policy. The phrase’s main implication is that it extends the familiar expectation of loyalty to the state (usually only violated through treason or service with a foreign military), and makes citizenship more broadly conditional on good behaviour. By this logic, citizenship is not a default status to which everyone is entitled, but rather, to adopt the words of the new law, a privilege enjoyed only by those whose behaviour is not (deemed to be) ‘seriously prejudicial to the vital interests’ of the UK (Immigration Act 2014, [s40(4A)]). Deprivation therefore effectively functions here as a punishment for such behaviour – though, as I discuss in the next section, it bypasses the court system that dispenses punishment for criminal behaviour. Though it forms the basis of the government’s position, the phrase ‘Citizenship is a privilege, not a right’ seems to emerge from nowhere in its discourse, with no acknowledged source. In fact, it appears to have first been used not in the UK but in the US, in May 2010, by then Secretary of State Hillary Clinton. Speaking to the press following a meeting with former Lithuanian Prime Minister Andrius Kubilius, she used it in response to an off-topic press question regarding Lieberman’s Terrorist Expatriation Act, which had been proposed the previous day. Furthermore, she was speaking not about citizenship in general (as the UK Home Office uses the phrase) but specifically about US citizenship. Aside from that one instance, it does not appear to have been used at all in the US case, except for once in Ted Cruz’s speech to the Senate on 18 September 2014, when he was explicitly quoting Clinton. Either the UK Government came to the phrase independently, or it imported it from Clinton and turned what appears to have been an off-hand response to a surprise question into its guiding policy. The UK’s policy appears to have been developed in response to the case of Al-Jeddah, an Iraqi-born British man whose denaturalisation was overturned by the High Court, only to find that the government issued a second deprivation order shortly afterwards (BBC 2013). The government’s argument was that ‘it was his inaction, rather than her deprivation order, which had made him stateless’ (Gower 2014, 19). This expands the familiar notion that citizenship can be lost due to a failure to act ‘correctly’ – or at least not to act ‘incorrectly’ – to the more radical one that it can be lost due to a failure to act full stop. In the US, Ted Cruz also sought to frame citizenship as conditional on conduct. Since the case of Vance v. Terrazas in 1980, the US position has been that the government can revoke citizenship only where it is found to have been affirmatively renounced by the citizen. It is


Citizenship Studies

7

not enough to prove that a citizen did something that is considered deserving of denaturalisation; it must also be proven that the citizen did so with the intention of renouncing their citizenship. Cruz’s argument rested on collapsing this distinction, specifically in the context of Americans who join jihadist groups in Iraq and Syria. For example, he insisted that ‘Congress should make fighting for or supporting ISIS an affirmative renunciation of American citizenship’ (CNN, 11 September 2014). When introducing his Expatriate Terrorists Act, he said: ‘there can be no clearer renunciation of their citizenship’ (Press release, 5 September 2014) than going to join the Islamic State of Iraq and the Levant (ISIS). And courting the Senate’s support, he said: ‘It is my hope that this body will stand together […] to make clear in that any American that takes up arms with ISIS has, in doing so, constructively renounced his or her American citizenship’ (Senate session, 8 September 2014). Taking up arms with ISIS, then, is taken to be at once the clearest possible renunciation of citizenship and an act whose import requires clarification. Whilst Cruz claimed his bill was necessary to address new threats, his discourse is a well-established one. His argument relies on what I term ‘zero-sum citizenship’, in which loyalty to one’s official country of citizenship is thought to be proportionally curbed by expressions of allegiance to foreign authorities. Cruz takes this to the extreme by declaring that such expressions of alternative allegiance do not simply dilute but in fact eradicate the original allegiance. Hence, he said: ‘By fighting for ISIS, U.S. citizens have expressed their desire to become citizens of the Islamic state. And that cannot and will not peacefully coexist with remaining American citizens’. Similarly, ‘By fighting for ISIS, U.S. citizens have expressed their desire to become citizens of the terrorist group, which calls itself the Islamic State’ (Senate session, 8 September 2014). Whilst for the UK Government, the basis for revocation is a perceived act against the citizen’s state, for Cruz it is a perceived allegiance toward an alternative authority. These two acts are of course one and the same – a UK/US national going to fight in Syria or Iraq – but the two discourses give different emphases. Whilst the UK appears to be framing revocation as a defensive measure against a perceived or potential aggressor, the US emphasises that defection is aggression. Although on the one hand Cruz presents ISIS as a state-like authority that can admit ‘citizens’, he at the same time stresses ISIS’s non-state status, calling it ‘a nonstate terrorist group’ (Congressional Record 18 September 2014, S5728), ‘a grotesque parody of a nation state’ (Senate Session, 8 September 2014), and one among many ‘non-nation terrorist groups’ (Congressional Record 18 September 2014, S5727). Joe Liebermann, the senator who in 2010 proposed a similar bill to Cruz’s, drew the same distinction between the US’s enemies during the Second World War and those it faces today – ‘stateless actors who don’t wear uniforms’ (Quoted in Patterico 5 May 2014). Cruz and Libermann, then, both sought to present support for terrorism as an affirmative renunciation of American citizenship, but they did so by invoking the paradoxical possibility of a non-state citizen. The denaturalised terror suspect is lumbered with the incriminating loyalties of (enemy) citizenship, but furnished with none of its safeguards. The zero-sum logic is therefore not only fallacious in its structural suggestion of proportionate relationship between competing loyalties, but is also internally flawed, since the two loyalties are inconsistently presented as both equivalent and incompatible.

8

P. Sykes

Citizenship as connection


‘Citizenship as connection’ refers to conceptualisations that present citizenship as constituting a particular relationship between the citizen and the state. From the perspective of the former, it mainly takes the form of claims to rights: citizenship as a status that entitles an individual to particular rights that can be invoked in particular circumstances. This is a familiar conception, but an interesting corollary emerged in the data-set from the perspective of the state, namely a conception of citizenship as a traceable link that allows a government to monitor its citizens – something that may not be possible, for example, in the case of a stateless person who has no legal status vis-à-vis the state in which they find themselves. This idea of citizenship was mainly found in the UK case, where it was presented as a threat-monitoring instrument. One example is Chris Bryant MP, who warned the Commons that revoking citizenship could create a population of stateless people who would present a greater threat than any citizen would. We would end up with people in this country who we would simply be keeping completely stateless, without any role or standing. We cannot simply banish them to France as we would have done in the middle ages. (Hansard, column 267WH).

In the Lords, Baroness Smith of Basildon also questioned the efficacy of creating a statelessness population. Does that not mean that we have people who are stuck here, whom we cannot deport and to whom we have obligations, but no charge has been brought against them? How does that help ensure that national security is protected? (Hansard, House of Lords Debate 17 March 2014, Column 44)

Her concerns were echoed by Baroness Hamwee (column 55) and Lord Pannick, who directly invited the government to consider the same criticism, saying: Does the Minister therefore accept that, far from contributing to national security, the exercise of Clause 60 against persons in this country will positively damage national security by making it more difficult to remove people who are a danger to the public good? (Column 48)

Even Liberty, the rights advocacy group, echoed this concern (2014, 13). Members of both houses thus tried to dispute the government’s proposed legislation on its own terms, through the same discourse of national security that was used to justify the powers. Though the proposed US legislation was intended to counter the same threat, this idea that a nation of citizens is more secure than a nation of stateless people did not feature at all in that case. Instead, the connection between the state and the citizen was predominantly conceived of as one of rights. Incredibly, the supposedly fundamental right to citizenship, enshrined in Article 15 of the UN Declaration of Human Rights, was not invoked by politicians in either data-set. This absence was only noted by Goodwin-Gill’s (2014, 8) opinion paper on the UK law. But citizenship did feature – predominantly in the US case – as a body of rights, namely as a status that enabled access to them. Instead of international law, US contributors resorted to their Constitution. Writing to senators, David Cole of the Constitution Project stated explicitly that ‘Citizenship is a constitutional right, and the Constitution prohibits the government from revoking a person’s citizenship against his will under any circumstances’ (Letter to Senators, 17 September 2014, 1). Laura Murphy and Arjun Sethil of the American Civil Liberties Union meanwhile said: S. 2779 is dangerous because it would attempt to dilute the rights and privileges of citizenship, one of the core principles of the Constitution […] As the Supreme Court explained in 1967 in Afroyim v. Rusk, ‘the Fourteenth Amendment was designed to, and does, protect every

Citizenship Studies

9

citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race.’ (Letter to senators, 17 September 2014, 1)

Many speakers in the UK also opposed the law on rights grounds. Only one, the Government’s Independent Reviewer of Terrorism Legislation, David Anderson QC, saw citizenship explicitly as the right to reside. The whole concept of citizenship is about the right of abode, and the right to come back to where you live. (Quoted in Gower 2014, 12)

But others, including the JCHR in their report and Simon Kirby MP in the Commons, indicated that this was the intended target of the new law.


It appears from various statements by ministers that one of the principal purposes, and possibly the only purpose, of the new power is to enable the Secretary of State to remove from the UK individuals who are deemed to be dangerous and therefore a risk to national security. (JCHR 2014, 14) Is this not just about getting rid of very bad people and preventing them from coming back to our country? Is that not the nub of what we are discussing? (Hansard, House of Commons Debate, 30 January 2014, column 1049)

The majority of rights-related objections, however, were that denaturalisation might be used as an opaque alternative to established, transparent mechanisms of prosecution. According to Jacob Rees-Mogg MP, If people have committed an offence so serious, important and threatening to the life of the nation that their passport should be confiscated, surely they have committed some other crime for which they could be charged, dragged through the courts, perhaps found guilty by a jury and then sentenced accordingly, with the penalty handed down in the right and proper way and their rights and liberties as subjects being maintained. (Hansard HC, 30 January 2014, column 1086) His criticisms were echoed in the US. This provision would violate Americans’ constitutional right to due process, including by depriving them of citizenship based on secret evidence, and without the right to a jury trial and accompanying protections enshrined in the Fifth and Sixth Amendments. (Murphy and Sethil 2014, 2) Anyone found to be aiding terrorist should be brought to swift justice. Our system already allows for that without the stripping away of Constitutional rights of the citizens we are trying to protect. (Rubens, quoted in DiStaso 29 August 2014) Rights were not only invoked by those opposed to the law, however. Describing the new powers he had proposed, Lieberman himself said: if a U.S. citizen travels to Somalia to train with and fight for alShabaab – as more than 20 young men have done over the past several years – the State Department will now have the authority to revoke their citizenship so that they cannot return here to carry out an attack. If, in some way, they do, and are then captured, they will not enjoy the rights and privileges of American citizenship in the legal proceedings against them. (Press statement, quoted in Patterico 5th May 2010)

Here citizenship is a body of rights that protects an individual during legal proceedings, ensuring a fair trial – or, more broadly, what Goodwin-Gill (2014, 1) means when he argues that ‘Citizenship is not a “privilege”’ reserved for those who swear, feel or perform allegiance, ‘but a protected legal status’. Suspected militants are not considered deserving of these safeguards. Rather than refuting the rights contained in the Constitution, Lieberman sought to exclude people from eligibility to them, giving the supposedly undiscriminating document

10

P. Sykes

a distinctly discriminatory edge. The resulting vulnerable, extrajudicial zone sounds similar to that described in the JCHR’s report in the context of a pair of denaturalised British citizens who were no longer able to avail themselves of the protection of their former state. The deprivation of citizenship removes the State’s responsibility for the protection of the individuals concerned and exposes them to actions which lack due process. Two former UK citizens who have been deprived of their citizenship have subsequently been killed by US drone strikes, and others are reported to have been exposed to irregular treatment including rendition. (2014, 10).


Charges of discrimination were made in the UK, where politicians noted that Clause 60 of the Immigration Act would allow the government to strip naturalised citizens of their citizenship, whilst leaving British-born citizens immune from the new powers. Some, such as Jacob Rees-Mogg, used the argument to oppose the law. Once any one of us has a passport that says we are British, we are as British as anybody else, whether they were born here or got their passport five minutes ago. […] I worry that if we give the Government the ability to take passports away from a certain category of British subject but not from others, it will create a potential unfairness and a second category of citizen. (Hansard HC, 30 January 2014, column 1086) Others, such as Alok Sharma MP, used it to argue for the powers’ expansion. Perhaps my right hon. Friend should go even further […] and introduce similar sanctions against anyone who is British, irrespective of how they got British citizenship, if they do something so heinous against the British state. (Hansard HC, 30 January 2014, column 1042)

Yasmin Qureshi MP challenged such a differentiation on grounds of fairness in terms of recourse to rights, whilst Jacob Rees-Mogg MP emphasised ‘Britishness’ as an equalising status. my hon. Friend the Member for Hackney North and Stoke Newington (Ms. Abbott) was born in England, but I was born in Pakistan. We are both British nationals, but if she was to commit murder, which I am sure she is not going to, she could not be deported, whereas if I did, I could be. Is that fair? (Qureshi, Hansard HC, 30 January 2014, column 1091–2). Anybody who is fortunate enough to be a subject of Her Majesty is an equal subject of Her Majesty with all others. (Rees-Mogg, Hansard HC, 30 January 2014, column 1087)

The same objection to ‘two-tier citizenship’, (Dr Julian Huppert MP, Hansard HC, 30 January 2014, column 1100) then, was mobilized on both liberal and nationalistic grounds. Diane Abbott MP best articulated the implications of such a differentiation: the fear will be that although this has started with suspected terrorists, where will it end, once the state decides that British citizenship is not indivisible? (Abbott, Hansard HC, 11 February 2014, column 255WH)

What these politicians were proposing was a conception of citizenship as an indiscriminate bond between the citizen and the state. Furthermore, unlike the US case, they largely did so not in explicit terms of the rights that might stem from that bond, but from its more structural quality as an equalising status. Representing the Home Secretary in the Commons, Mark Brokenshire MP rejected their arguments, saying: ‘The proposal merely reflects the fact that there are differing routes to citizenship’ (Hansard HC, 11 February 2014, column 261WH). But it resurfaced in the Lords debate, where Baroness Smith of Basildon said: ‘It would be helpful if the Minister could clarify whether there are any other areas of law in which we have different categories of citizens’ (Hansard HL, 17 March 2014, column 40), adding: ‘In most countries, if someone

Citizenship Studies

11

is a citizen then they are a citizen’ (column 61). Whilst an international standard is here being invoked, it is a comparative one that seems to stoke pride in Britain as a leader, rather than a transcendent one of human rights or internationally accepted practices. Ironically, ‘equality between citizens’ was the exact phrase used by Theresa May (2014) in a flagship speech on counterterrorism in September 2014 – 4 months after the Immigration Act became law. Referring to Islamic extremists, she said:


The extremists believe in a clash of civilisations – a fundamental incompatibility between Islamic and Western values, an inevitable divide between ‘them and us’ […] They utterly reject British and Western values, including democracy, the rule of law, and equality between citizens, regardless of their gender, ethnicity, religion or sexuality. They believe that it is impossible to be a good Muslim and a good British citizen.

The government at once appears to espouse equality among citizens whilst making some citizens’ citizenship more precarious than others’. This brings us closer to the kind of contradiction championed by Cruz, a situation in which citizens are equal, but some are more equal than others.

Conclusion In my section on citizenship as conduct, I showed that advocates of increased denaturalisation powers in both the UK and US tried to present citizenship on ‘good’ behaviour. Certain acts did not simply constitute a ‘bad’ or dissident citizen, but were re-framed as being incompatible with the status of citizenship itself – either through the UK’s assertion that citizenship is a privilege rather than a right, or, in the US, through a fallacious zerosum understanding of competing loyalties. In my section on citizenship as connection, I showed that these new powers effectively created a second class of citizens whose status is more precarious than others in the eyes of the state under whom they are supposedly equal. This precariousness in turn generated the possibility of exclusion from supposedly fundamental constitutional rights. In both cases, this discriminatory force was invoked in such a way as to delimit the bounds of the normatively ‘good’ citizen to whom the ‘foreign fighter’ was opposed by proponents of the new powers. For all their rhetoric around behaviour that is conducive to the public good or behaviour that confirms an affirmative renunciation of citizenship, my analysis suggests that we are not simply seeing a resurgence of the ‘civic republican discourse’ (citizenship as loyalty to the state) over the ‘liberal discourse’ (citizenship as rights of the individual). Instead we are seeing elements of the former open up a space of exception in the latter. Citizenship is still conceived of as a body of individual rights, but they are conditional on loyalty to the state. The two discourses are in sequence, rather than competition. The civic republican discourse is being used not as an alternative to one that espouses a more limited political arena, but precisely as a tool designed to effect the limitation of that arena. This is not in the sense that liberalism espouses, i.e. through creating a small state that is content to assure the basic rights and freedoms of its citizens, but in the sense of selectively excluding particular ‘undesirable’ groups – terror suspects, naturalised citizens – from political life as we know it. This is in keeping with the accounts of Brighton (2007) and Kundnani (2002) on the broader shift in political culture away from multiculturalism and towards assimilation – and in turn the exclusion of those who do not or cannot assimilate.

12

P. Sykes

If the American and British cases demonstrate the ‘privileging’ of citizenship through the exclusion of ‘undesirables’, the findings of this study could be further developed by considering further cases. Canada and Australia – both allied with the US and UK in the ‘war on terror’ – passed legislation similar to the UK’s in 2015, and the number of denaturalisation cases has dramatically increased (Meurrens 2012). The Australian law in fact goes further than its UK equivalent. Offences such as ‘damaging Commonwealth property’ were also considered deserving of denaturalisation, and sole nationals were also considered (The Guardian, 24 June 2015). It appears that the space of exception analysed in this study is growing, at the expense of its corollary – the normative space of the ‘acceptable’ citizen.


Notes 1. See Jackson (2007) on the broader genealogy of the powerful ‘Islamic terrorism’ discourse as a whole, and its tendency towards orientalist tropes. 2. This does not include the 26 others who have been denaturalized on fraud grounds – i.e. they were found to have acquired British citizenship fraudulently, for example, by lying on their application form. 3. This specification of the state as guarantor demonstrates the limits of Arendt’s definition, since a stateless person has rights under international law. What they lack is recourse to the (usually) state-level mechanism required to enforce them. 4. Article 1 of the 1954 Convention Relating to the Status of Stateless Persons defines a stateless person as someone ‘who is not considered as a national by any State under the operation of its law’. 5. See, for instance, Lichtman (2012, 17) on the case of Stanislaw Nowak. 6. USA PATRIOT is an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.

Acknowledgements The author would like to thank Professor Zeynep Kadirbeyoğlu for her invaluable comments during the writing of this paper.

Disclosure statement No potential conflict of interest was reported by the author.

Funding This research was supported by the Scientific and Technological Research Council of Turkey.

References Abowitz, Kathleen Knight, and Jason Harnish. 2006. “Contemporary Discourses of Citizenship.” Review of Educational Research 76 (4): 653–690. Aleinikoff, T. Alexander. 1986. “Theories of Loss of Citizenship.” Michigan Law Review 84: 1471–1503. BBC. 2013. “Terror Suspect Loses UK Citizenship.” December 2. http://www.bbc.co.uk/news/uk25190305. Benhabib, Seyla. 2005. “Borders, Boundaries, and Citizenship.” PS: Political Science and Politics 38 (4): 673–677.


Citizenship Studies

13

Blitz, Brad K., and Maureen Lynch, eds. 2011. Statelessness and Citizenship: A Comparative Study on the Benefits of Nationality. Cheltenham: Edward Elgar. Brighton, Shane. 2007. “British Muslims, Multiculturalism and UK Foreign Policy: ‘Integration’ and ‘Cohesion’ in and beyond the State.” International Affairs 83 (1): 1–17. doi:http://dx.doi. org/10.1111/j.1468-2346.2007.00600.x. Cole, David. 2014. “Letter to Senators.” September 17. http://www.constitutionproject.org/wpcontent/uploads/2014/09/9-17_Letter_re_Terrorist_Expatriation_Act.pdf. Congressional Record, 18 September 2014, S5726–28. https://www.congress.gov/congressionalrecord/2014/9/18/senate-section/article/S5726-2. Cooper, Terry L., and Diane E. Yoder. 1999. “The Meaning and Significance of Citizenship in a Transnational World: Implications for Public Administration.” Administrative Theory & Praxis 21 (2): 195–204. Couldrey, Marion, and Maurice Herson, eds. 2009. Statelessness: Forced Migration Review. Vol. Issue 32. Oxford: Refugee Studies Centre. Cruz, Ted. 2014. “Ted Cruz: How U.S. Can Stop ISIS.” CNN, September 11. http://www.cnn. com/2014/09/10/opinion/ted-cruz-how-us-can-stop-isis/index.html. DiStaso, John. 2014. “Brown Says It’s ‘Common Sense’ to Revoke Citizenship of Americans Fighting alongside ISIS.” NH Journal. http://nhjournal.com/brown-wants-to-strip-citizenship-fromamericans-fighting-alongside-isis/. Galey, P., and A. K. Ross. 2014, June 3. Interactive: The 53 Britons Stripped of their Nationality. The Bureau of Investigative Journalism. http://www.thebureauinvestigates.com/2014/06/03/interactivethe-53-britons-stripped-of-their-nationality/. Goodwin-Gill, G. S. 2014, March 12. Deprivation of Citizenship Resulting in Statelessness and its Implications in International Law Opinion by Guy S. Goodwin-Gill. Immigration Law Practitioners’ Association. http://www.ilpa.org.uk/resources.php/26308/professor-guy-goodwingill-deprivation-of-citizenship-statelessness-and-international-law-more-autho. Gower, M. 2014, September 4. Deprivation of British Citizenship and Withdrawal of Passport Facilities - Commons Library Standard Note. http://www.parliament.uk/business/publications/research/ briefing-papers/SN06820/deprivation-of-british-citizenship-and-withdrawal-of-passportfacilities. Groot De, Gerard-René, and Maarten P. Vink. 2010. Loss of Citizenship: Trends and Regulations in Europe. SSRN Scholarly Paper. Rochester, NY: Social Science Research Network. http://papers. ssrn.com/abstract=1694701. Gross, Emanuel. 2003. “Defensive Democracy: Is It Possible to Revoke the Citizenship, Deport, or Negate the Civil Rights of a Person Instigating Terrorist Action against His Own State.” UMKC Law Review 72: 51–122. Hansard. House of Lords Debate, 17 March 2014. Heath-Kelly, Charlotte. 2013. “Counter-Terrorism and the Counterfactual: Producing the ‘Radicalisation’ Discourse and the UK PREVENT Strategy.” The British Journal of Politics & International Relations 15 (3): 394–415. doi:http://dx.doi.org/10.1111/j.1467-856X.2011.00489.x. Hegghammer, Thomas. 2010. “The Rise of Muslim Foreign Fighters Islam and the Globalization of Jihad.” International Security 35 (3): 1–15. Herzog, Ben. 2010. “Dual Citizenship and the Revocation of Citizenship.” Research in Political Sociology 18: 87–106. Home Office. “Immigration Bill: Overview Factsheet.” October 2013. https://www.gov.uk/government/ uploads/system/uploads/attachment_data/file/249251/Overview_Immigration_Bill_Factsheet.pdf. Hooker, C. 2005. The Past as Prologue: Schniederman v. United States and Contemporary Questions of Citizenship and Denaturalization. 19 Emory Int’l L. Rev. 305. Hsieh, H. -F., and S. E. Shannon. 2005. Three Approaches to Qualitative Content Analysis. Qualitative Health Research 15 (9): 1277–1288. http://doi.org/10.1177/1049732305276687. Jackson, Richard. 2007. “Constructing Enemies: ‘Islamic Terrorism’ in Political and Academic Discourse.” Government and Opposition 42 (3): 394–426. doi:http://dx.doi.org/10.1111/j.14777053.2007.00229.x.


14

P. Sykes

JCHR (Joint Committee on Human Rights). Legislative Scrutiny: Immigration Bill (Second Report), HL Paper 142 HC 1120, 3 March 2014. Kerber, Linda K. 2005. “Toward a History of Statelessness in America.” American Quarterly 57 (3): 727–749. Kraehenmann, Sandra. 2014. Foreign Fighters under International Law. Vol. Academy Briefing No. 7. Geneva: Geneva Academy of International Humanitarian Law and Human Rights. Kundnani, Arun. 2002. “The Death of Multiculturalism.” Race & Class 43 (4): 67–72. doi:http://dx.doi. org/10.1177/030639680204300406. Landman, Todd. 2003. Issues and Methods in Comparative Politics: An Introduction. London: Psychology Press. Lavi, Shai. 2010. “Punishment and the Revocation of Citizenship in the United Kingdom, United States, and Israel.” New Criminal Law Review: An International and Interdisciplinary Journal 13 (2): 404–426. Lavi, Shai. 2011. “Citizenship Revocation as Punishment: On the Modern Bond of Citizenship and Its Criminal Breach.” The University of Toronto Law Journal 61 (4): 783–810. League of Nations. 1930. Convention on Certain Questions Relating to the Conflict of Nationality Laws. The Hague: League of Nations. Liberty. 2014. Liberty’s Report Stage Briefing on Clause 64 of the Immigration Bill in the House of Lords. Liberty. https://www.liberty-human-rights.org.uk/campaigning/other-campaigns/statelessness. Lichtman, Robert M. 2012. The Supreme Court and McCarthy-Era Repression: One Hundred Decisions. Urbana: University of Illinois Press. Lord Goldsmith, Q. C. 2008. Citizenship: Our Common Bond. http://image.guardian.co.uk/sys-files/ Politics/documents/2008/03/11/citizenship-report-full.pdf. Malet, David. 2013. Foreign Fighters: Transnational Identity in Civic Conflicts. New York: Oxford University Press. May, Theresa. 2014. Home Secretary Theresa May on Counter-Terrorism. Speech, Royal United Services Institute, Whitehall, London. https://www.gov.uk/government/speeches/home-secretary-theresamay-on-counter-terrorism Meurrens, Stephen. 2012. “Understanding the Citizenship Revocation Process.” Meurrens on Immigration: Canadian Visas, Permits and Citizenship. http://meurrensonimmigration.com/1800people-poised-to-lose-citizenship/. Muller, Benjamin J. 2004. “(Dis)Qualified Bodies: Securitization, Citizenship and ‘Identity Management’.” Citizenship Studies 8 (3): 279–294. Murphy, Laura, and Arjun Sethi. 2014. “Oppose Cruz Bill S. 2779, Expatriate Terrorists Act; S. 2779 is Unnecessary and Dangerous.” September 17. https://www.aclu.org/sites/default/files/ assets/140917_citizenship_stripping_letter.pdf. Mustapha, Jennifer. 2013. “The Mujahideen in Bosnia: The Foreign Fighter as Cosmopolitan Citizen and/or Terrorist.” Citizenship Studies 17 (6–7): 742–755. Office of Senator Ted Cruz. 2014. “Cruz to Introduce Bill to Stop Americans Who Join ISIS from Returning to United States.” September 5. https://www.cruz.senate.gov/?p=press_release&id=1678. Patriot Act. 2001. http://www.gpo.gov/fdsys/pkg/BILLS-107hr3162enr/pdf/BILLS-107hr3162enr.pdf. Preuss, Lawrence. 1942. “Denaturalization on the Ground of Disloyalty.” The American Political Science Review 36 (4): 701–710. Ross, Alice K. 2014. “Interview by Author. via Skype.” November 28. Ross, Alice K., and Patrick Galey. 2013. “Rise in Citizenship-Stripping as Government Cracks down on UK Fighters in Syria.” Citizenship Revoked. December 23. http://www.thebureauinvestigates. com/2013/12/23/rise-in-citizenship-stripping-as-government-cracks-down-on-uk-fighters-insyria/. Sejersen, Tanja Brøndsted. 2008. “‘I Vow to Thee My Countries’: The Expansion of Dual Citizenship in the 21st Century.” International Migration Review 42 (3): 523–549. Spalek, Basia, and Laura Zahra McDonald. 2010. “Terror Crime Prevention: Constructing Muslim Practices and Beliefs as ‘Anti-Social’ and ‘Extreme’ through CONTEST 2.” Social Policy and Society 9 (01): 123–132. doi:http://dx.doi.org/10.1017/S147474640999025X.


Citizenship Studies

15

Taylor, L. (2015). “Citizenship Could Be Stripped for Damaging Commonwealth Property.” The Guardian, June 24. http://www.theguardian.com/australia-news/2015/jun/24/new-laws-dualnationals-lose-citizenship-for-damaging-commonwealth-property. Trop v. Dulles. 1958. 52: 777–784. UN (United Nations). 1948. Universal Declaration of Human Rights. 217 A (III). Accessed May 23 2016. http://www.refworld.org/docid/3ae6b3712c.html. UN (United Nations). 1954. Convention Relating to the Status of Stateless Persons. United Nations, Treaty Series, Vol. 360, p. 117. Accessed 23 May 2016. http://www.refworld.org/docid/3ae6b3840. html. UN (United Nations). 1961. Convention on the Reduction of Statelessness. United Nations, Treaty Series, Vol. 989, p. 175. Accessed 23 May 2016. http://www.refworld.org/docid/3ae6b39620.html. U.S. Senate: Morning Business. 2014. C-SPAN.Org. Accessed December 28. http://www.c-span.org/ video/?320891-1/us-senate-morning-business&live Vertovec, Steven. 2001. “Transnational Challenges to the ‘New’ Multiculturalism.” Paper Presented to the ASA Conference Held at the University of Sussex, March30–April 2, 2001. Waas, Laura van. 2008. Nationality Matters: Statelessness under International Law. School of Human Rights Research Series, V. 29. Antwerp: Intersentia. Waas, Laura van. 2009. “Statelessness: A 21st Century Challenge for Europe.” Security and Human Rights 20: 133–146. Walker, Dorothy Jean. 1981. “Statelessness: Violation or Conduit for Violation of Human Rights?” Human Rights Quarterly 3 (1): 106–123.